Upton v. Sturbridge Cotton Mills

A delivery, apparently unrestricted, of goods sold for cash, is a waiver of the condition that payment is to be made before the passing of the property in the goods, although the seller has an undisclosed intent not to waive the condition. If the plaintiff introduces evidence of a usage, and the defendant introduces evidence of a different usage, the refusal of the judge to rule that if the evidence is conflicting the defendant cannot maintain his defence on the ground of usage, gives the plaintiff no ground of exception, if the defendant relies upon his evidence of usage only to negative the usage sought to be established by the plaintiff. In an action for the conversion of the plaintiff’s goods sold and delivered by him to J. S., and by J. S. to the defendant, in which the plaintiff contends that the delivery to J. S. was cc nditional on payment, and that J. S. did not pay, evidence that J. S. was at the time deeply insolvent is immaterial, if offered, not to show fraud on the part of J. S., but to repel any inference, from the fact of resale, that J. S. understood the delivery to be absolute, if such fact is not used to raise that inference.

Tout for the conversion of seventy-eight bales of cotton. At the trial in this court, before Morton, J., the plaintiff testified that he was owner of the cotton, and authorized a broker to sell it for cash; that on ¡November 27 the broker brought him a sale note thereof to Jenkins Brothers & Chipman; that on November 28 the plaintiff sent to his weigher, and to A. C. Lombard, in whose loft the cotton was stored, written directions to weigh and turn out the cotton; “ that, although he did not know that the cotton was taken possession of by the purchaser, he supposed it would be, under such an order to turn out; that cotton comes from the South, with the producer’s marks of weight, and is exposed to damage in the transit, and to being sanded and falsely packed; that turning out is for the purpose of allowing the purchaser to inspect, reweigh, resample and examine the cotton; that, according to the usage, as understood by him at the time, the purchaser of cotton for cash has ten days within which he is to examine the cotton, and is bound to pay for it at some time within that period; that he had, himself, been for many years a seller of cotton, and occasionally a purchaser; that, within a day or two of the purchase, he received from the weigher the weights of the cotton, and then sent his bill to Jenkins Brothers & Chipman, with a certificate of weights; that, on December 7, not having received his money, he sent for the same to Jenkins Brothers & Chipman, who sent him a check which, on presentation to the bank, was refused payment; that, at the time of the sale, he did not know Jenkins Brothers & Chipman, nor their pecuniary ability, and made no inquiries as to their credit, supposing himself safe, the title of the cotton being in him; that he sent the order to turn out the cotton, understanding that such lelivery was conditional, not intending to part with the title until he got his money; and that he acted in this in conformity to the usage, as he understood it, when sales of cotton are made for cash.” It was proved that Jenkins Brothers & Chipman failed on December 8; that on November 28, the day the cotton was ■ turned out, they removed it, and pledged it to one Hurlburt, to supply the place of other cotton previously pledged to him, which had been taken away; that the defendants bought the cotton of Jenkins Brothers & Chipman, on Saturday, December 5, for “ cash on delivery; ” and that it was delivered to them on Monday, and paid for by them on the next day. Neither of the firm of Jenkins Brothers & Chipman were called as witnesses. The plaintiff demanded the cotton of the defendants on December 15. The plaintiff offered to prove that Jenkins Brothers & Chip-man were largely and deeply insolvent at the time of the purchase ; but the defendants objected, and the judge excluded the evidence. To fortify the plaintiff’s testimony as to his intention in ordering the cotton turned out and put into the possession of the purchaser, the plaintiff called George M. Barnard, and six other merchants and cotton brokers, who were, and had been for many years prior to 1868, and ever since, large dealers in cotton, who testified “ that they knew the usage as to cotton sales at the time of this sale, and long prior thereto; that, in a sale of cotton for cash, it was the usage to allow the purchaser to take possession of the property, and to have the cotton turned out for his examination, and within ten days of the sale he was bound to complete his examination, and pay for the cotton; that the delivery by the seller was a conditional one, for the purposes aforesaid, and did not, and was not intended to pass the title; and that no title passed until the money was paid.” Barnard, who had been many years in the business, testified that the usage arose “ from the nature of the article, from the fact that it is exposed to damage, false packing, and false samples; that it requires to be examined on all sides, which cannot be done in store, nor in bad weather; that sometimes cotton is on shipboard, and delays occur in unlading; that uncertainty and delays resulted from these causes; and that those delays had sometimes extended to thirty days, until the usage of ten days was established, within which the examination. must be made, and the money paid.” It was stated by most of the plaintiff’s witnesses that it was the practice of the purchasers to resell within the ten days, and that such practice was known to the sellers; some of them stated that such sales were understood to be subject to the title of the original seller; others, that the sale was made on the responsibility of the party so selling, and did not divest the seller’s title. Some of the witnesses testified that the usage of trade authorized resale, and that they all did it. The defendants called thirteen witnesses, dealers and cotton brokers, who testified “ that they knew of no such usage as that of a conditional delivery of cotton, in sales for cash, for the purposes of examination, and to be paid for within ten days; that by the usage of the trade all such sales were on a credit of ten days, vesting the property at once by delivery or turning out in the purchaser; that it was frequently the custom, if the purchase money was paid before the ten days, to demand and receive an abatement equal to the interest, and sometimes a bonus beyond interest; that whatever examination was made by the purchaser, was made at the time of turning out and taking possession; and that upon a sale for ‘ cash on delivery,’ it was understood that cash was paid contemporaneously.” The plaintiff’s witnesses, being recalled, testified that no usage existed, or was ever known to them, by which a credit of ten days, or any other credit, was given, in sales of cotton for cash. The plaintiff requested the judge to instruct the jury as follows : “ 1. In legal construction the written contract between the parties is a 6 conditional sale for cash,’ and vests no title in the purchaser until the terms have been complied with, unless it should be shown that the plaintiff knowingly and voluntarily waived the ■ condition. 2. The evidence of the defendant that the legal construction is not the true one, and that by the usage of trade such a contract is a sale on a credit of ten days, cannot be supported unless that usage be proved to be uniform and general; so that if there be a conflict of evidence on this point the defendant cannot by law maintain his defence on that ground, 8. Upon the question whether the plaintiff voluntarily waived the condition, if there be a conflict of evidence upon the question whether there existed a usage to deliver cotton on a cash sale conditionally and for the purpose of examination, yet as this evidence as to usage is offered by the plaintiff to show that his understanding, as stated by him, of a usage, was not baseless, and guided his conduct, it is not requisite that there should be no conflicting evidence as to the usage. 4. In relation to the question of a voluntary waiver of the condition of sale by a delivery of possession, the true inquiry is, What was the intent of the vendor ? Was it to make such waiver ? and not, What was the intent of the vendee, who has nothing to waive. Unexplained, the mere act of delivery may be taken as evidence of such waiver, but it is open to explanation by the vendor.” The judge declined to give these instructions, or either of them, except so far as is contained in his instructions upon the subjects embraced in the prayers, which were, in substance, as follows: “ The written contract, standing alone, imports a sale for cash upon the condition that the cash is to be paid upon delivery; delivery under it is presumptively a waiver of this condition; but such delivery may be conditional, in which case the title does not pass until the condition is performed. In this case, as it is not claimed that there was any expressed agreement that the delivery to Jenkins Brothers & Chipman was conditional, one of the questions is, whether there was a condition by a usage of the trade. The plaintiff contends, as one of the grounds entitling him to recover, that there is a usage of the trade, that in such a transaction as this the delivery is conditional, and by it the title to the property sold does not pass to the buyer until it is paid for. It is incumbent upon the plaintiff to show this. If he has done so, then no title to the cotton in controversy passed to Jenkins Brothers & Chipman; they could give no title to the defendants, and the plaintiff is entitled to recover. If no such usage is shown to exist, then by the sale and delivery the title passed, and the plaintiff cannot recover. Such usage must be shown to be uniform and general. It is not enough that half the trade practise upon tibe usage, if the other half do not.” The jury returned a verdict for the defendants, and the judge • reported the case for the consideration of the full court. If any of the rulings or refusals to rule were erroneous, a new trial to be ordered; otherwise judgment to be entered on the verdict.